The
contribution analyzes the implications of the Kadi decision of the
European Court of Justice of 18 July 2013, as well as that of the Nada
decision of the European Court of Human Rights of September 2013. Both
decisions have given preference to human rights standards over United
Nations Security Council sanctions stemming from the Resolution 1267
(1999) sanctions regime. However, they used very different techniques in
coming to similar results, with implications for the effective
enforcement of UNSC binding decisions and the unity of international
law.

“Laicism”
or “secularism” can be defined as a principle of neutrality of the
state in which it must preserve freedom of conscience, equality and
freedom of religion. These three rights must be framed in a clear and
obvious distinction between state and religion. In this article we show
how the principle of secularism in France is based on a universal
concept against the way the ECHR based its action interpreted and
applied secularism by repeated use of the doctrine of national margin of
appreciation.

In the
judgment Costa and Pavan v. Italy of 28th August 2012, No. 54270/10, the
European Court of Human Rights (the Court) ruled that, by forbidding
the recourse of couples carrying a genetic defect to medically assisted
procreation and preimplantation screening, whilst simultaneously
permitting abortion in cases where the foetus was suffering from such an
illness, Italy had, due to this alleged inconsistency, violated Article
8 of the Convention – which guarantees the right to the respect of
private and family life. Furthermore, it demonstrates the increasing
willingness of the Court to limit the margin of appreciation the States
possess in legislative matters, including in the most ethically
controversial areas. This decision constitutes an important step in the
recognition of a true right to a genetically healthy child; that is to
say to eugenics; that the Court calls the “right [of the applicants] to
bring a child into the world who is not affected by the illness that
they carry” (§ 65).